Affirmed and Memorandum Opinion filed M a rch 31 , 2020.

In t he 

## Fourteenth Court of Appeals

NO. 14

- 18

- 00418

- CV

CITY OF HOUSTON , Appellant

v . HOUSTON PROFESSIONAL FIRE FIGHTERS ’ ASSOCIATION,

LOCAL 341 , Appellee

On Appeal from the 127th District C ourt

Harris County, Texas Trial Court Cause No. 2016

- 19307

MEMORANDUM OPINION

The trial court rendered summary judgment confirming an arbitration award in favor of appellee Houston Professional Fire Fighter s ’ Association, Local 341 ( the Association ) and dism iss ing a declaratory judgment action appealing the arbitration award brought by appellant City of Houston . The City contends the trial court erred in granting the Association ’s summary

- judgment motion because the arbitrator (1) lacked jurisdiction when the A ssociation ’s griev ance was untimely,2

(2) exceeded her jurisdiction by deciding a question that was not before her, (3) modified the law and terms of the collective bargaining agreement (CBA ) at issue , and (4) exceeded her jurisdiction by ordering rei nsta tement of three
fir efighters

. We affirm.

I. B ACKGROUND The City and the Association entered a CBA which included an agreement to arbitrate certain disputes

. In cases proceeding to arbitration, CBA article 14 vested the arbitrator with the following aut hori ty:
The arbitrator ’ s aut hority shall be limited to the interpretation and application of the terms of this Agreement and/or any supplement thereto. The arbitrator shall have no jurisdiction or authority to establish provisions of a new agreement or var iati ons of the present Agree ment or to arbitrate away, in whole or in part, any provisions of amendments thereof

. The matter decided by the arbitrator in this case stemmed from a grievance filed by the Associatio n after the Houston Fire Department terminat ed t he employment of several permanent , non

- probationary firefighters for failure to achieve paramedic certification

. I I

. A NALYSIS
A. Standard of review

We first address the law governing our review of the arbitration award underlying the trial court’s summar y ju dgment. Neither the pa rties nor the CBA invoke s the Federal Arbitration Act

. See 9 U.S.C. § § 1

– 16 ( 2018 )

. Whether the Federal Arbitration Act applies to collective bargaining agreements is not clear under federal law. See Int ’ l Ass ’ n of Machinists & Ae rosp ace Workers Local Lodge
2121 AFL

– CIO v. Goodrich Corp. , 410 F.3d 204, 207 n. 2 (5th Cir. 2005). The Supreme Court of Texas recently applied common

- law arbitration principles to an3

arbitration provision in a collective bargaining agreement involving con stabl es in Jefferson County. See Je fferson Cty. v. Jefferson Cty. Constables Ass’n , 546 S.W.3d 661, 665 (Tex. 2018)

. Though the supreme court did not expressly address whether the Federal Arbitration Act applied, the court necessarily concluded that the Ac t did not apply, because cour ts only apply common

- law arbitration principles if no arbitration statute applies. See Beldon Roofing Co. v. Sunchase IV
Homeowners ’ Ass’n, Inc ., 494 S.W.3d 231, 237 (Tex. App.

— Corpus Christi 2015, no pet.). Because in a simila r cir cumstance the supreme court concluded that the Federal Arbitration Act did not apply, we reach the same conclusion in today’s

case. See Jefferson Cty. , 546 S.W.3d at 665

. By its own terms, the Uniform Arbitration Act does not apply, as it explicitly

e xempt s collective bargaining agreements from its scope. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(a)(1). T he Fire and Police Employee Relations Act cited in the City’s brief applies only to arbitrations concerning an impasse in collective

- bargaining n egoti ations, not disputes arising under an executed agreement

. See Tex. Loc. Gov’t Code Ann. § 174.153(a). Accordingly, we review the award under Texas common law. See Jefferson Cty

. , 546 S.W.3d at 665 (reviewing arbitrat ion award stemming from executed CB A und er common law when no statute otherwise covered dispute)

. “ ‘ A ll reasonable presumptions are indulged in favor of the award, and none against it.’” CVN Grp

. , Inc. v. Delgado , 95 S.W.3d 234, 238 (Tex. 2002) (quoting City of San Antonio v. McKenzie Constr.
Co

. , 150 S.W.2d 989, 996 ( Tex. 1941)). Accordingly , “[c] ommon

- law grounds for vacating an arbitration award are exceedingly narrow and do not include an arbitrator ’ s mere error in applying the law. ” Jefferson Cty

. , 546 S.W.3d at 6 74

. B. Timeliness of grievan ce The City ’s first issue hinges on its position tha t the Association ’s grievance4

was untimely. The grievance procedure outlined in CBA article 14 provided that the Association was required to file a grievance within 30 days of the date “upon which the ass oci ation knew or should have known of the facts or events giving rise

to the grievance.” The City asserts the Association knew or should have known of the facts underlying its grievance as early as October 29, 2014, but did not file its grievance until Jan uar y 14, 2015. The City concludes that, in ruling that the grievance was timely, t he arbitrator exceeded her authority under the CBA , as the untimeliness of the grievance deprived the arbitrator of jurisdiction under the CBA’s grievance procedure s, which s tat e that no further action may be taken if a grievance is not timely filed

. T he c ommon law allows vacatur of an arbitration award if the arbitrator exceeds the scope of her authority

. See Jefferson Cty

. , 546 S.W.3d at 665 ; Gulf Oil Corp. v. Guidry , 327 S. W.2 d 406, 408 ( Tex. 1959) ( “[T]he authority of arbitrators is derived from the arb itration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication.” )

. H ere, h owever, the CBA specifically ta s k ed t he arbitrator with “ the interpretation and application of the terms ” of the CBA. T he plain language of this provision encompasses the terms in CBA article 14 concerning when a grievance must be filed, placing it squarely within the arbitrator’s authority t o d etermine the fact

- bound question of whether the grievance was timely

. See Jeffe rson Cty

. , 546 S.W.3d at 674 (“ The arbitrator ’ s analysis

. . . may or may not be correct, but it is precisely within the scope of his contractual authority to resolve ‘ [a]ll dis putes concerning the proper interpretation and application of ’ the CBA. ”). 1 We accordingly conclude that the

1 The City argues that Jefferson County does not apply to this case b eca u se the Association “ has not shown that the agreement in Jefferson County Constables is the same as the agreement here, so there can be little or no comparison regarding the Arbitrator’s jurisdiction.” We note that the above

- quoted portion of the CBA in Je f ferson County reveals that the arbitrator in that case was authorized to decide “ [a]ll disputes concerning the proper interpretation and5

arbitrator did not exceed her authority by deciding the timeliness issue. The City also argues that the arbitrator’s determination that the grie van ce was timely constitutes a “clear and manifest error of law.” To the extent th is argument may be construed as an invocation of the common

- law standard of “gross mistake,” the argument fails. Gross mistake is a mistake that implies bad faith or failure to exercise honest judgment. See Callahan & Assocs

. v. Orangefield Indep. Sch. Dis t. , 92 S.W.3d 841, 844 (Tex. 2002) . The City does not direct us to any evidence that the arbitrator acted dishonestly or in bad faith, precluding this argument. 2 See id. We o ver rule the City’s first issue.

C. Scope of issue before arbitrator

In its second iss ue, the City asserts the arbitrator exceeded her jurisdiction by deciding an issue that was not made the basis of the Association ’s grievance

— that the terminated firefighters ha d a right to an administrative appeal. The City

asserts the Association never sought a determinatio n of whether the terminated individuals had a right to an administrative appeal of their terminations, but the arbitrator found they were “improperly term ina ted without appeal.” The grievance read as follows:
application of

” the CBA

— strikingly similar to CBA article 14 in this case, which grants the arbitrator authority re gar d ing “the interpretation and application of the terms ” of the CBA. Regardless, Jefferson County stands for the general proposition that the arbitrator may act within the scope of authorit y granted by the CBA, which is the basis of our analysis here.

2 T o t h e extent the City argues that the arbitrator’s decision on timeliness constitutes a “manifest disregard of the law,” this court has characterized that theory as a creature of federal
com mon law that applies only in FAA proceedings, and even in that con tex t has been disavowed. See Action Box Co., Inc. v. Panel Prints, Inc. , 130 S.W.3d 249, 252 (Tex. App.

— Houston [14th Dist.] 2004, no pet.)

. In any event, even if “manifest disreg ard of the law” were a common

- law vacat ur ground , the result would be the sam e. M anifest disregard of the law is more than mere error or misunderstanding with respect to the law ; rather, the standard requires a showing that the arbitrator clearly recognize d the applicable law but chose to ignore it , a showing the City has not made. Se e Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P. , 105 S.W.3d 244, 252 (Tex. App.

— Houston [14th Dist.] 2003, pet. denied)

.6

The City of Houston has unilaterally changed t he working conditions of certain Houston firefighters by unilaterally implementing new job requirements regarding paramedic credentialing. Specifically, th e C ity is now requiring members to successfully complete paramedic school, paramedic certification fr om the Texas Department of State Health Services (TDSHS), and be credentialed by a Physician Director as a Paramedic

. The arbitrator framed the issue as fo llo ws : Has the City impermissibly violated the Maintenance of Standards article of the CBA, which ret ains all unenumerated privileges and working conditions enjoyed by Houston firefighters as of ratification of the CBA, when it unilaterally denied the appe al rights of permanent members by summarily terminating them for failure to satisfy the paramedic j ob requirement? The arbitrator ultimately found : Therefore, we find that . . . the working conditions were changed because the consequences of failing to qua lif y now resulted, for the first time, in termination without hearing rights. We find that this indee d violated Article 5, Maintenance of Standards. 3

The issue the arbitrator decided was the issue submitted for her consideration

— were working conditions ch ang ed by the new job requirements regarding paramedic credentialing? The arbitrator determined that t he new job requirements changed working conditions because the consequences of failing to meet the paramedic requirements changed , thereby violating CBA ar tic le 5 . The

3 CBA a rticle 5 , section 1 (Maintenance of Standards) reads: All economic benefits, privileges, and working conditions wh ich are properly and lawfully in effect in the Houston Fire Department, as to matters subject to mandatory bargaining under Chapter 174 [ The Fire and Police Employee Relations Ac t ] , and enjoyed by the Firefighters of the bargaining unit as of the effective da t e of this Agreement, but which are not included in this Agreement (including the foregoing Management Rights Article), shall remain unchanged for the duration of this Agreeme nt, so long as those benefits, privileges, and working conditions do not inter fer e with the operation of the Department.7

inability to “ appeal, ” or have a hearing, concerning termination was one of the changed consequences under a rticle 5

. As this analysis of the terms of the CBA was within the scope of the arbitrator’s authority, w e overrule the City’s second
is sue

. See Jefferson C ty

. , 546 S.W.3d at 674.

D. Modification of state law In its third issue, the City asserts that Local Government Code chapter 143 does not provide a right of administrative appeal to a firefighter who is terminated for failing to meet con dit io ns of employment

. Tex. Loc. Gov’t Code Ann. §§ 143.001

– . 363 (municipal civil service for fire fighters and police officers). The City then argues that, because c hapter 143 controls over a CBA unless the CBA specifically provides otherwise, see Tex. Loc. Go v ’t Code Ann. § 174.006 (a) , and because this CBA did not specifically modify chapter 143 to provi de for such an administrative hearing , the arbitrator exceeded her jurisdiction by determin ing that the terminated individuals should have a post

- terminati on h e aring , “result [ing] in a modification of state law that was not contracted for by the parties.” The City’s argument that the arbitrator “modified” state law, however, boils down to a contention that the arbitrator got the law wrong. Such an argument i s be y ond the scope of our review. “ A complaint that the arbitrator decided the issue incorrectly or m ade mistakes of law, however, is not a complaint that the arbitrator exceeded her powers. ” Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc. , 294 S. W.3d 818, 830 (Tex. App.

— Dallas 2009, no pet.) (citing Pheng Invs., Inc. v. Rodriquez , 196 S.W.3d 322 , 329 (Tex. App.

— Fort Worth 2006, no pet.) )

. As above , t he arbitrator based her award on the fact that working conditions changed in violation of CBA artic le 5 because “never before had a permanent employee been terminated without hearing rights for failur e to pass the paramedic credentialing requirement.” T his analysis of the terms of the CBA was within the8

scope of the arbitrator’s authority, and we accord ingl y overrule the City’s third
issue. See Jefferson Cty

. , 546 S.W.3d at 674.

E. Remedy of reinstatement

In its fourth issue, the City asserts the arbitrator had no jurisdiction to order reinstatement of the terminated employees because the CBA did not specif ical l y grant the arbitrator the authority to reinstate . The City cites United Steelworkers of
America v. Enterprise Wheel & Car Corp. , 363 U.S. 593 (1960), as its sole case in support of this assertion. In that case, however
, the United States Supreme Cour t

re j ected the argument that , because the collective bargaining agreement did not provide for a speci fic remedy, the award was not based on the contract. See 363 U.S. at 598

– 99. Rather, Enterprise Wheel and its progeny “ make it abundantly clear that where the c ontract is not explicit concerning the proper remedy, the arbitrator is given wide latitude in f ashioning an appropriate remedy.” Mogge v. Int’l Ass ’ n of Machinists , 454 F.2d 510, 514

– 15 (7th Cir. 1971) (citing Enterprise Wheel , 363 U.S. at 597 , among ot h e r cases).
Texas courts likewise have reached the conclusion that “ an arbitrator has broad discretio n in fashioning an appropriate remedy. ” Forest Oil Corp. v. El Rucio Land & Cattle Co., Inc. , 446 S.W.3d 58, 82 (Tex. App.

— Houston [1st Dist.] 2014), af f’d , 518 S.W.3d 422 (Tex. 2017) ; see Daniewicz v. Thermo Instrument Sys., Inc. , 992 S.W.2d 713, 718 ( Tex. App.

— Austin 1999, pet. denied) (“[A] rbitrators have traditionally enjoyed broad leeway to fashion remedies. ”). In the CBA , the parties do not prohibit rei n statement as a remedy. The c ommon

- law grounds for vacating an arbitration award are exceedingly narrow and do not include an arbitrator ’ s error in applying the law. See Jefferson Cty

. , 546 S.W.3d at 674. We conclude that the arbitrator did not exceed h er a uthority in order ing reinstatement of the terminated employees

. See id . (holding that arbitrat or did not9

exceed his authority in ordering reinstatement of terminated deputy constables on seniority basis). We overrule the City’s fourth issue.

I II

. C ONC LUS I ON We affirm the trial court’s judgment.

/s/ Charles A. Spain Justice
Panel consists of Chief Justice Frost and Justices Spain and Poi ssant.